Kerala High Court
Ramesh vs Prema on 17 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 17TH DAY OF JANUARY 2023 / 27TH POUSHA, 1944
OP(CRL.) NO. 391 OF 2022
AGAINST THE ORDER DATED 20.06.2022 IN CRMP 147/2022 IN MC
NO.260/2018 OF FAMILY COURT, PALAKKAD
PETITIONER/PETITIONER/RESPONDENT:
RAMESH
S/O. PALAZHIVASAN,
AGED 52 YEARS,
MUKRAMKAD VEEDU,
KOTTEKKAD, MALAMPUZHA II VILLAGE,
PALAKKAD, PIN - 678732
BY ADV BINOY VASUDEVAN
RESPONDENT/RESPONDENT/PETITIONER:
PREMA
W/O LATE PALAZHIVASAN,
AGED 78 YEARS,
MUKRAMKAD VEEDU,
KOTTEKKAD, MALAMPUZHA II VILLAGE,
PALAKKAD, PIN - 678732
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
17.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(CRL.) NO.391 OF 2022
2
JUDGMENT
Dated this the 17th day of January, 2023
This Original Petition (criminal) has been filed under
Article 227 of the Constitution of India and the prayers herein
are as under:
"i. To call for the records leading to
Crl.M.P.No.147/2022 in M.C.No.260/2018 on the file
of the Family Court, Palakkad and to set aside the
order dated 20.06.2022 in the interest of justice,
ii. To allow as Crl.M.P.No.147/2022 in MC
No.260/2018 on the file of the Family Court,
Palakkad, in the interest of justice."
2. Though notice served upon the respondent, who
admittedly the mother of the petitioner, aged 78 years, did not
appear.
3. Heard the learned counsel for the petitioner.
4. The original petitioner is aggrieved by order dated
20.06.2022, whereby the Family Court dismissed Crl.M.P.
OP(CRL.) NO.391 OF 2022
No.147/2022 in M.C.No.260/2018, a petition filed by the
petitioner to set aside ex parte order passed against him on
28.01.2022.
5. The learned counsel for the petitioner would submit
that the petitioner, who is admittedly the son of the
respondent, filed petition accompanied by an affidavit sworn
by the petitioner stating that he could not appear and file
counter on 28.01.2022 since he was laid up due to Covid-19
during the relevant period and thereby he could not contact his
Advocate and the case file was with the Advocate, who had
been residing in Ernakulam.
6. The respondent herein/the original petitioner/mother
opposed the said prayer stating that the reasons stated in the
affidavit were not sufficient to set aside ex parte order and no
medical certificate was produced by the petitioner to
substantiate the case that he was affected by Covid on the
date of posting. The learned counsel reiterated the said
OP(CRL.) NO.391 OF 2022
argument and submitted that ex parte order as Ext.P5 is liable
to be set aside with liberty to the petitioner to contest the
matter on merits.
7. While appreciating the contention raised by the
learned counsel for the petitioner, it is to be borne in mind that
the mother, who is aged 78 years as on today, is the original
petitioner in the above MC and the respondent herein and she
had knocked the doors of the Family Court when she trailed in
the matter of getting something for her sustenance. MC was
filed in the year 2018 (MC No.260/2018) and the same kept
pending before the Family Court till 28.01.2022. It is relevant
to note that no objection also filed by the respondent for a
period of two years and on 28.01.2022, he was absent.
Accordingly, an ex parte order was passed to the following
effect:
"1. The order passed y this Court in MC 301/11, is
hereby altered and the maintenance to be paid
by the respondent to the petitioner is refixed at
the rate of Rs.6,000/- per month from the date of
OP(CRL.) NO.391 OF 2022
petition till the date of order and at the rate of
Rs.7,500/- per month from the date of order.
2. The respondent is hereby directed to pay
maintenance to the petitioner at the enhanced
rate of Rs.6,000/- per month from the date of
petition, that is from 16.10.2018, till the date of
order and at the rate of Rs.7,500/- per month
from the date of order, within one month.
3. The respondent is entitled to have set off of the
amounts, if any, already paid as per the orders in
MC 301/11 from the arrears of the maintenance
to be paid as per this order.
4. The petitioner is authorised to realise an amount
of Rs.5,000/- as the costs of the petition from the
respondent and his assets."
8. It appears that earlier, the respondent-mother
approached the Family Court and filed M.C.No.301/2011.
Thereafter, the mother approached the Family Court to
enhance the maintenance under Section 127(1) of Cr.P.C. In
the said petition, the above order was passed.
9. As per the order in M.C.No.260/2018 dated
28.01.2022, the mother claimed enhancement of maintenance
OP(CRL.) NO.391 OF 2022
to the tune of Rs.12,000/- from Rs.2,500/- earlier granted, on
the assertion that the petitioner herein had been earning
Rs.35,000/- per month and the annual income would come to
Rs.3,00,000/-. As I have already pointed out, the petitioner
herein not opted to file an objection resisting the said
contention for a substantive long period of two years.
10. Normally, when opportunity sought for by a party in
cases where he suffers ex parte order, an opportunity may be
provided to the party aggrieved, to contest the matter on
merits, after setting aside the ex parte order. Normal
procedure of such nature could not be followed invariably in all
matters. There shall be deviation from the said procedure in
an appropriate case. Here, as I have already pointed out, the
mother is aged 78 years. In such a case, setting aside the
order and remanding the matter for providing an opportunity to
the petitioner, who is the son, in fact, is nothing but, doing
injustice to the mother, who has been trailing to survive for
multiple reasons, where the son/petitioner did not have a case
OP(CRL.) NO.391 OF 2022
that he could not maintain the mother for any reason or the
mother is otherwise capable of maintaining herself. Therefore,
taking deviation from the general procedure adopted by this
Court, for the reasons stated, I am inclined to dismiss this
petition.
Accordingly, this original petition (Criminal) stands
dismissed confirming the order dated 20.06.2022 in
Crl.M.P.No.147/2022 in M.C.No.260/2018 passed by the
Family Court, Palakkad.
Registry is directed to forward a copy of this judgment to
the court below concerned, within seven days, for information
and compliance.
Sd/-
A. BADHARUDEEN
JUDGE
nkr
OP(CRL.) NO.391 OF 2022
APPENDIX OF OP(CRL.) 391/2022
PETITIONER EXHIBITS
Exhibit P 1 TRUE COPY OF THE PETITION DATED
16.10.2018 FILED BY THE RESPONDENT
Exhibit P 2 TRUE COPY OF THE ORDER DATED
28.01.2022 IN M.C.NO.260 OF 2018 ON
THE FILE OF FAMILY COURT, PALAKKAD
Exhibit P 3 TRUE COPY OF CRL.M.P.NO.147 OF 2022 IN
M.C.NO.260 OF 2018 ON THE FILE OF
FAMILY COURT, PALAKKAD.
Exhibit P 4 TRUE COPY OF THE OBJECTION DATED
27.05.2022 IN CRL.M.P.NO.147 OF 2022
IN M.C.NO.260 OF 2018 ON THE FILE OF
FAMILY COURT, PALAKKAD.
Exhibit P 5 TRUE COPY OF THE ORDER DATED
20.06.2022 IN CRL.M.P.NO.147 OF 2022
IN M.C.NO.260 OF 2018 ON THE FILE OF
FAMILY COURT, PALAKKAD
